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[2010] ZAGPPHC 633
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Muller v Minister of Safety and Security (39728/2008) [2010] ZAGPPHC 633 (17 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE NO: 39728/08
DATE: 17 June 2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN THE MATTER
BETWEEN
DIRK JOHANNES
MULLER
....................................................................................................
PLAINTIFF
AND
MINISTER OF SAFETY
AND
SECURITY
.........................................................................
DEFENDANT
JUDGMENT
MAKGOBA. J
[1]
The plaintiff instituted a claim against the defendant for damages
arising out of his alleged unlawful arrest and detention
by members
of the South African Police Service. At the trial both liability and
quantum
were
in dispute.
[2] It is common
cause that the plaintiff was arrested without a warrant of arrest on
27 August 2005 at Barberton and released on
29 August 2005 without
any charge being preferred against him or any appearance in court. It
is further common cause that the plaintiff
was arrested by a
peace-officer in the service of the defendant, who at all material
times acted within the course and scope of
his employment with the
defendant.
[3] In his defence
the defendant denied that the arrest was unlawful and stated that the
plaintiff was arrested in terms of section
40(1 )(b) of the
Criminal
Procedure Act 51 of 1977
in that the plaintiff was reasonably
suspected of having committed an offence referred to in Schedule 1 of
the Act in that the
plaintiff was reasonably suspected of having
stolen an amount of R2 400,00 from one Stefan van den Berg on 26/27
August 2005.
[4]
It is trite that an arrest is
prima
facie
unlawful
and wrongful. It is for the defendant to prove the lawfulness of the
arrest. See
Ralekwa
v
Minister of Safety
& Security
2004(1)
SACR 131 (T);
Louw
v Minister of Safety & Security
2006(2)
SACR 178 (T);
Minister
of Law and Order
v
Hurley
1986
3 SA 568
(A) at 587-589.
In
Zealand
v
Minister of
Justice and Constitutional Development
2008(2)
SACR 1 (CC) at page 11 LANGA CJ held that:
"[24] There is
another, more important reason why this court should rule in the
applicant's favour. The Constitution enshrines
the right to freedom
and security of the person, including the right not to be deprived of
freedom arbitrarily or without just
cause, as well as the founding
value of the freedom. Accordingly, it was sufficient in this case for
the applicant simply to plead
that he was unlawfully detained. This
he did. The respondents then bore the burden to justify the
deprivation of liberty, whatever
form it may have taken."
[5]
The factual background to this case will have to be looked into in
order to determine whether the defendant has discharged the
onus
of
proof that rests on him.
[6] On the morning
of 27 August 2005, at Barberton police station, the plaintiff and one
Alwyn Nunes were arrested by a member of
the South African Police
Force. They were detained in the holding cells at the police station
at 12:00 until he was released on
the morning of 29 August 2005 at
around 09:25. The arrest relates to the complaint lodged by Mr Van
den Berg, who alleged that
in late hours of 26 or early morning of 27
August 2005 his money in an amount of R2 400.00 was stolen from his
house. Mr Van den
Berg, his girl friend, the plaintiff and Mr Nunes
had spent the night at this house.
[7] The evidence of
the plaintiff is that early the next morning of 27 August, Van den
Berg informed plaintiff that his money was
missing and that Mr Nunes
had gone away. Van den Berg suspected Nunes as the thief and went to
his house to confront him. At 11:00
Van den Berg came to the
plaintiffs house with Nunes. The three then went to the police
station at the insistence of Mr Nunes who
said he wanted to go for a
polygraph test. At the police station the police appeared to be
reluctant to do anything about the case
and Mr Van den Berg then
informed the uniformed policeman who was on duty that he would
personally deal with the matter by assaulting
the guilty person. The
policeman then decided to arrest both the plaintiff and Nunes and
locked them up to "protect them against
Van den Berg".
[8] The plaintiff
states that when he was locked up he was never informed of the crime
he was being arrested for, that no constitutional
rights were
explained to him that he was under arrest and that form SAP 22 (a
document containing a detainee's rights) was never
completed, read
out and given to him to keep. His personal properties in the form of
a w
!
allet containing about R150,00, licence, library card
and bank card were left in his possession when he was locked up.
According
to the plaintiff Van den Berg begged the police not to
detain the plaintiff but they could not listen to him.
[9] The
investigating officer arrived there the following morning on Sunday.
Nunes told the investigating officer that he will admit
guilt and
will give the money back.
Notwithstanding
that, the investigating officer told him that they can wait until the
next day. The next morning on 29 August 2005
the plaintiff was
released at about 09:00 without being charged or appearing in court.
[10] It is common
cause that the investigating officer in the case relating to loss of
Mr Van den Berg's money is Inspector Mhlongo.
who gave evidence in
this case on behalf of the defendant. According to plaintiff he was
never arrested and detained by Inspector
Mhlongo. He saw Inspector
Mhlongo for the first time on Sunday and thereafter on Monday 29
August when he was released.
[11] Inspector
Mhlongo testified that he is a police officer for the past eighteen
years. On 27 August 2005 at around 08:00 he reported
for duty at the
police station at Barberton. He left the police station to attend to
other dockets and came back at about 09:00
or 10:00. He found the
complainant (Van den Berg), the plaintiff and Mr Nunes at the charge
office. He was told by another police
officer that he must attend to
complainant.
[12] He had seen the
docket which relates to the complainant's case. He interviewed the
complainant who told him that his money
was stolen. He suspected
these people (referring to the plaintiff and Nunes). He then
interviewed the plaintiff and Mr Nunes who
denied having taken the
money but admitted having been at Van den Berg's place on the day the
money got lost. He was convinced
that the plaintiff and Mr Nunes
might have stolen the money, therefore he arrested the suspects.
[13] Counsel for the
defendant argued that Inspector Mhlongo's suspicion was rested on
reasonable grounds and that it should be
found that the arrest of the
plaintiff was lawful as it falls within the ambit of section 40(1
)(b) of the
Criminal Procedure Act, 51 of 1977
. Before I can conclude
that Inspector Mhlongo's suspicions was on reasonable grounds I need
to make a finding that he was the peace
officer who arrested the
plaintiff on 27 August 2005. According to the plaintiff he was
arrested by the unknown uniformed policeman
in the charge office and
not Inspector Mhlongo whom he saw for the first time on Sunday
morning, 28 August 2005.
[14]
On the issue as to who arrested the plaintiff there are two
irreconcilable versions. The technique generally employed by courts
in resolving factual disputes of this nature was summarised in the
case of
Stellenbosch
Farmers Winery Group Ltd and Another
v
Martel ET C.1E and
Another
2003
1 SA 11
(SCA) at 14-15 by NIENABER JA who said the following:
"To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability and (c) the probabilities. As to (a), the court's finding
on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as
(i) the witness'
candour and demeanour in the witness box,
(ii) his bias,
latent and blatant,
(iii) internal
contradictions in his evidence,
(iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extra-curial statements
or actions,
(v) the probability
and/or improbability of particular aspects of his version,
(vi) the calibre and
cogency of his performance compared to that of other witnesses
testifying about the same incident or events.
As to (b), a
witness' reliability will depend, apart from the factors mentioned
under (a)(ii) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As
to (c), this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the
disputed issues.
In
the light of its assessment of (a), (b) and (c) the court will then,
as a final step, determine whether the party burdened with
the
onus
of
proof, has succeeded in discharging it."
[15] There are stark
differences in the evidence between the plaintiff and the defendant's
witness, Inspector Mhlongo. In assessing
the evidence I take into
account the honest and open way in which the plaintiff testified in
court. He was, although subjected
to an intense cross-examination,
not shaken in any way. He did not deviate from his evidence in chief.
His evidence has, in my
view, the ring of truth.
[16] On the other
hand the evidence of Mhlongo was of such a poor quality that the
court cannot accept any of his evidence where
it differs with the
evidence of the plaintiff. He contradicted himself on material
aspects and was admonished by the court on several
occasions to speak
up. He was not sure of himself when giving evidence in chief and when
answering questions under cross-examination.
To sum up, he was a
pathetic figure in the witness box.
[17] The
probabilities show that Mhlongo did not effect the arrest of the
plaintiff on 27 August 2005 but that another police officer
did that
as testified by the plaintiff. The case docket itself shows that he
only received the docket for further investigation
on 29 August 2005
when it was booked out to him by his superior, Superintendent
Seimela. I therefore reject Mhlongo's evidence
that he questioned the
plaintiff on 27 August 2005, formed a suspicion that the plaintiff
had committed an offence and then arrested
him.
[18]
Having rejected the version of Inspector Mhlongo, I accordingly find
that there is no evidence to show that any police officer
reasonably
suspected the plaintiff of having committed an offence. The
defendant's defence as pleaded can therefore not stand.
I conclude
therefore, that the arrest and detention of the plaintiff was
unlawful. That brings me to the question of
quantum.
[19]
In reaching a decision on the damages to be awarded I am mindful of
the fact that each case must be looked at on its own merits
and that
a comparison of cases could be used as a guideline to assist the
court in arriving at an award. In
Minister
of Safety and Security
v
Seymour
2006
6 SA 320
(SCA) at page 325 NUGENT JA held that:
"[17] The
assessment of awards of general damages with reference to awards made
in previous cases is fraught with difficulty.
The facts of a
particular case need to be looked at as a whole and few cases are
directly comparable. They are a useful guide to
what other courts
have considered to be appropriate but they have no higher value than
that."
[20] In this case I
take into consideration that the plaintiff spent two nights in
detention and was ultimately released without
being charged. The
police had an opportunity to desist from arresting him when the
complainant. Van den Berg objected to the arrest
and indicated that
he did not suspect him. Furthermore on Sunday Mr Nunes admitted guilt
but the police did not consider the plaintiffs
release. The conduct
of the police in this regard can be said to have been heartless if
not malicious.
[21] The plaintiff
has undergone a harrowing experience of being locked up in police
cells with seasoned criminals who harassed
him for almost the two
days he spent in detention. He could hardly eat and have a peaceful
sleep. To date hereof he is still bitter
and regards the incident
unforgettable.
[22]
I have considered several and comparable decided cases wherein
different awards were made regard being had to the circumstances
of
the particular case. The following are such cases with corresponding
amounts of damages awarded:
Seria
v
Minister of Safety
and Security
2005
5 SA 130
(C) (amount R50 000.00);
Van
Niekerk
v
Minister of Safety
and Security
2008(1)
SACR 446 (W) (amount R80 000,00);
Olivier
v
Minister of Safety
and Security
2008(2)
SACR 387 (W) (amount R50 000,00);
Sibiya
v
Minister of Safety
and Security
[2008] ZAKZHC 44
;
[2008]
4 All SA 570
(N) (amount R308 750.00);
Van
Rensburg
v
City of
Johannesburg
2009(1)
SACR 32 (W) (amount R75 000,00).
[23] It is not an
easy task to determine the amount to be awarded and whilst cases
referred to above have served as a useful guideline
and taking into
consideration the aggravating circumstances in this case as outlined
in plaintiffs evidence, I am satisfied that
an amount of R120 000.00
is reasonable in the circumstances.
[24] The following
order is made:
(a) The defendant is
ordered to pay to the plaintiff an amount of R120 000.00.
(b) Payment of
interest at the rate of 15,5% per annum from 28 May 2010 to date of
payment.
(c) Costs of suit,
which costs shall include the costs of plaintiffs senior counsel.
E.M. MAKGOBA
JUDGE OF THE
NORTH GAUTENG HIGH COURT
39728-2008
HEARD ON: 4 JUNE
2010
FOR THE PLAINTIFF:
ADV G C MULLER
INSTRUCTED BY:
COETZER ATTORNEYS
FOR THE DEFENDANT:
ADV PHASWANE
INSTRUCTED BY: STATE
ATTORNEY